CAMERON McGOWAN CURRIE, Senior District Judge.
Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C.
On August 15, 2014, Defendant replied to the Government's motion, arguing that "[six] months after I was sentenced to 188 months my lawyer [James] Rogers wrote [two] letters saying I wasn't qualified for [the Armed Career Criminal enhancement] and I was falsely sentenced...." Reply at 1, ECF No. 63. Defendant posits, "What kind of stuff is this, to wait [six] month[s] to tell me I am falsely sentenced, on his own." Id.
Out of an abundance of caution, the court notified the parties that it was considering Defendant's reply as an amendment to the § 2255 motion, asserting a claim of ineffective assistance of counsel. The court appointed counsel under 18 U.S.C. § 3006A(a)(2)(B) and directed supplemental briefing regarding the claim of ineffective assistance of counsel and related issues concerning Defendant's sentence as an armed career criminal. See Order, ECF No. 70.
On December 29, 2014, the Government responded to the court's briefing order. ECF No. 77. On January 23, 2015, Defendant, through counsel, replied.
On January 9, 2015, the United States Supreme Court ordered the parties in United States v. Johnson, 526 Fed.Appx. 708 (8th Cir.2013), cert. granted, ___ U.S. ___, 134 S.Ct. 1871, 188 L.Ed.2d 910 (2014), to brief "whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague." 574 U.S. ___, 135 S.Ct. 939, 190 L.Ed.2d 718 (2015) (order restoring case to argument calendar for reargument and ordering supplemental briefing). This court determined the matter should be held in abeyance pending the decision in Johnson. On June 26, 2015, the Supreme Court held the "residual clause" of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), unconstitutionally vague. 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).
For reasons more fully explained below, the court finds counsel was ineffective at sentencing, that Defendant was prejudiced by counsel's ineffectiveness, that the sentence imposed January 8, 2014, should be vacated, and this matter should be set for resentencing.
In early June 2013, Defendant was indicted in this District for felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). On June 19, 2013, the Government filed an Information notifying Defendant that based upon his prior criminal record, he was subject to the enhanced penalties provided for in 18 U.S.C. § 924(e). ECF No. 23.
On September 25, 2013, Defendant entered into a written plea agreement to plead to felon in possession. As a part of the plea agreement, Defendant waived his direct appeal rights and his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. On September 26, 2013, Defendant appeared before the court and after a thorough Rule 11 hearing (which Defendant does not
A Pre-Sentence Report (PSR) concluded Defendant was an armed career criminal under the ACCA and faced a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. The PSR found that Defendant's four prior convictions for South Carolina burglary third degree, as well as his convictions for assault on a correctional officer and taking of hostage by inmate, all qualified as "violent felonies" under the ACCA. See PSR ¶¶ 22, 24, 25, ECF No. 41.
No objections to the PSR were filed by either the Government or Defendant. On January 8, 2014, Defendant appeared for sentencing. The court denied Defendant's motion for downward variance and sentenced him to 188 months' imprisonment.
On July 1, 2014, the Clerk of Court received Defendant's motion for relief under 28 U.S.C. § 2255 which he had mailed June 27, 2014. Defendant's motion presents two grounds for relief: Defendant argues he was incorrectly found to be an armed career criminal (Ground One) and there was insufficient evidence of his guilt (Ground Two).
On July 14, 2014, the Government moved to dismiss or, in the alternative, for summary judgment, ECF No. 60, arguing that the grounds presented in Defendant's § 2255 motion are barred by the terms of the plea agreement and, if not, are without merit.
Defendant filed a pro se response in opposition to the Government's original motion for summary judgment. ECF No. 63.
In his plea agreement, Defendant waived his right to challenge his conviction or "the sentence" via direct appeal or by motion for relief pursuant to § 2255 except for claims of ineffective assistance of counsel and/or prosecutorial misconduct. Plea Agreement at ¶ 10, ECF No. 36. The Government contends that Defendant's two grounds for relief fall squarely within this waiver.
"Plea bargains rest on contractual principles, and each party should receive the benefit of its bargain." United States v. Blick, 408 F.3d 162, 173 (4th Cir.2005) (internal quotation marks omitted). As a part of a plea bargain, "a criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary." United States v. Lemaster, 403 F.3d 216, 220 (4th Cir.2005). To determine whether a waiver is knowing and voluntary, courts examine factors such as "the experience and conduct of the accused, as well as the accused's educational background and familiarity with the terms of the plea agreement." United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (quoting United States v. General, 278 F.3d 389, 399 (4th Cir.2002)). "Generally, if a district court questions a defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the record indicates that the defendant understood the full significance of the waiver, the waiver is valid." Id. However, the issue is ultimately evaluated by reference to the totality of the circumstances. United States v. General, 278 F.3d 389, 400 (4th Cir.2002).
"[A] defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court." United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). Even where an appellate waiver provision is valid, a court will not enforce the waiver to preclude "a few narrowly-construed errors" that fall automatically outside its scope. United States v. Copeland, 707 F.3d 522, 530 (4th Cir.), cert. denied, 571 U.S. ___, 134 S.Ct. 126, 187 L.Ed.2d 89 (2013) (internal quotation marks omitted). This "narrow class of claims" encompasses errors "the defendant could not have reasonably contemplated when the plea agreement was executed." United States v. Poindexter, 492 F.3d 263, 270 (4th Cir.2007) (internal quotation marks omitted). Types of "illegal" sentences which a defendant can successfully challenge despite an appeal waiver involve fundamental issues, including claims that a district court exceeded its authority, see, e.g., United States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir.1995) (finding district court's imposition of restitution in absence of authority to do so to be "illegal"), or "premised its sentence on a constitutionally impermissible factor such as race, or violated the post-plea right to counsel." Copeland, 707 F.3d at 530 (internal quotation marks and alterations omitted). The Fourth Circuit and other circuit courts have held that if a defendant is informed of the statutory penalties associated with the ACCA, a challenge to a sentencing enhancement based upon being found an armed career criminal falls within the scope of the waiver. See United States v. Haskins, 198 Fed.Appx. 280 (4th Cir.2006); United States v. McGee, 516 Fed.Appx. 515 (6th Cir.2013); United States v. Adkins, 636 F.3d 432, 434 n. 3 (8th Cir.2011).
The Government argues that the issues presented in Defendant's original § 2255 motion are barred by Defendant's waiver of post-conviction remedies contained in his plea agreement. Defendant did not respond to this argument in his pro se
At Defendant's Rule 11 hearing, the court reviewed the entire plea agreement with Defendant, including the paragraph containing the appellate and post-conviction relief waiver. The court found that Defendant understood the terms of the plea agreement, including the waiver, that Defendant was competent to enter the plea, and that Defendant's plea was knowing and voluntary. Defendant presents no argument that he was not competent to enter the plea or that he did not understand the terms of the waiver. Accordingly, the Government is entitled to summary judgment on Defendant's original grounds raised in his motion under § 2255, as neither ground for relief asserts a claim of ineffective assistance of counsel or prosecutorial misconduct.
In his reply to the Government's summary judgment motion, Defendant reported that he had received a letter from defense counsel that "I wasn't qualified for [the ACCA enhancement] and I was falsely sentenced...." Reply at 1, ECF No. 63. The court notified the parties that it would construe Defendant's reply as an amendment to the motion under § 2255 raising a claim of ineffective assistance of counsel for failure to object to Defendant's classification as an armed career criminal.
Supplemental briefs were received, addressing this claim. In the meantime, the Supreme Court decided to reconsider the "void for vagueness" issue as to the residual clause of the ACCA via the Johnson case.
On June 26, 2015, the Supreme Court held that the residual clause of ACCA violates due process as it "denies fair notice to defendants and invites arbitrary enforcement by judges." 576 U.S. at ___, 135 S.Ct. at 2557 (2015). The decision in Johnson means the residual clause cannot support Defendant's classification as an armed career criminal. Therefore, failure of defense counsel to object on that basis has not prejudiced Defendant. The Government, however, also argues Defendant has sufficient qualifying predicate offenses under other provisions of the ACCA. Specifically, the Government now argues that Defendant's four South Carolina convictions for Burglary Third Degree and his conviction for Assault on a Corrections Employee remain ACCA predicate offenses. Consequently, the Government contends defense counsel was not ineffective and that Defendant has failed to show actual prejudice.
A conviction for felon in possession typically carries a statutory maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2). However, if the accused has three or more previous convictions for certain types of felonies, he is subject to an enhanced minimum sentence of fifteen years imprisonment with a maximum term of life imprisonment. Title 18 U.S.C. § 924(e)(1) provides:
18 U.S.C. § 924(e)(2)(B). The first clause, § 924(e)(2)(B)(i), is typically referred to as the "use of force" clause ("has as an element the use, attempted use, or threatened use of physical force against the person of another."). The first part of the second clause, § 924(e)(2)(B)(ii), lists specific offenses — burglary, arson, extortion, offenses involving use of explosives — and is commonly denoted as the "enumerated offense" clause. Finally, the portion of § 924(e)(2)(B)(ii) covering a conviction that "otherwise involves conduct that presents a serious potential risk of physical injury to another" is generally referred to as the "residual clause." As noted above, the Johnson decision rendered the "residual clause" unconstitutionally void for vagueness.
At the time of his sentencing on January 8, 2014, Defendant had four prior South Carolina convictions for Burglary, Third Degree, in violation of S.C.Code § 16-11-313(A). South Carolina Code § 16-11-313(A) provides "A person is guilty of burglary in the third degree if the person enters a building without consent and with intent to commit a crime therein."
The definitional section associated with a violation of § 16-11-313(A) is found at South Carolina Code § 16-11-310. This statute provides:
S.C.Code § 16-11-310.
The Government concedes that "South Carolina's third degree burglary statute, S.C.Code § 16-11-313, is not categorically `generic' burglary under the `enumerated offenses clause' of 18 U.S.C. § 924(e) because it includes conduct beyond `generic' burglary." Supplemental Resp. at 7, ECF No. 77.
Defendant was indicted in three cases for second degree burglary and in one case for first degree burglary.
Reply to Gov't Supplemental Resp. at 12, ECF No. 78.
The Government argues that because third-degree burglary is the lesser included offense of S.C.Code § 16-11-312(B), second degree burglary with aggravating circumstances, this court should apply the modified categorical approach and examine "those facts alleged in the original indictment that correspond to the elements of the lesser included offense." Supp. Resp. at 16 (quoting United States v. Martin, 215 F.3d 470, 473 (4th Cir.2000)).
As is relevant to this discussion, Defendant was indicted on one count of first degree and three counts of South Carolina second degree burglary. Each of the indictments for second degree burglary states that Defendant did "willfully and unlawfully enter without consent and with the intent to commit a crime therein, a building, to wit:," and each indictment then notes (presumably) the name of a business. However, the indictments contain no other identifying information, such as a street address, that would necessarily narrow the offenses to which Defendant pleaded guilty to burglary of a "structure" versus burglary of a "vehicle, watercraft, or aircraft...." S.C.Code § 16-11-310(A). In other words, when Defendant pleaded guilty to third degree burglary in each case, no Shepard-approved records of "findings of fact adopted by the defendant upon entering the plea" exist which would necessarily limit Defendant's conviction to an offense equating "generic" burglary. To find otherwise would be to engage in fact-finding prohibited by the Supreme Court in Taylor and its progeny. In this circumstance, much like being convicted of a burglary offense with an overbroad definition of burglary, "the defendant still would not have been convicted, in the deliberate and considered way the Constitution guarantees, of an offense with the same (or narrower) elements as the generic offense." Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276, 2290, 186 L.Ed.2d 438 (2013).
For these reasons, Defendant's South Carolina burglary third degree convictions are not predicate offenses under the ACCA.
The Government now contends that even without counting Defendant's four third degree burglary convictions, he still has three qualifying ACCA predicate offenses. The difficulty with this argument is that Defendant's South Carolina conviction for Assault on a Correctional Officer is not, and was not at the time Defendant was sentenced, a qualifying ACCA predicate offense under the "force" clause of 18 U.S.C. § 924(e)(2)(B)(i).
The conviction at issue was for violation of S.C.Code § 16-3-630 (repealed 2010 Act No. 273, § 7.2, eff. June 2, 2010), entitled "Conviction of Assault Upon State or Local Correctional Facility Employee, Penalty." Elements of the offense were: (1) an assault occurred; (2) the victim was a state or local correctional facility employee; and (3) the employee was performing job-related duties. State v. Wilkes, 346 S.C. 67, 550 S.E.2d 332, 333 (2001), rev'd on other grounds, 353 S.C. 462, 578 S.E.2d 717 (2003).
South Carolina assault requires no contact between the victim and the perpetrator. Mellen v. Lane, 377 S.C. 261, 659 S.E.2d 236, 244 (2008). As of 2010, the Supreme Court had ruled that a Florida statute prohibiting battery, which was satisfied
The standard governing ineffective assistance of counsel claims is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on such a claim, Defendant must first show that his counsel's performance was "deficient," Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052, and that such deficiency resulted in actual prejudice to Defendant. Id. As to the first prong of the Strickland test, a defense attorney's conduct is deficient if it fails to meet a standard of "reasonably effective assistance." Id. at 687, 104 S.Ct. 2052. A reviewing court must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S.Ct. 2052. See also Lockhart v. Fretwell, 506 U.S. 364, 371-72, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). To be ineffective, counsel's actions must be "objectively unreasonable under prevailing professional standards." United States v. Tucker, 603 F.3d 260, 262 (4th Cir.2010). In assessing counsel's action, "lack of preparation and research cannot be considered the result of deliberate, informed trial strategy." Hyman v. Aiken, 824 F.2d 1405, 1416 (4th Cir.1987).
To obtain relief via a claim of ineffective assistance of counsel, Defendant must establish that counsel was ineffective and that he suffered prejudice as a result. The question is whether counsel was ineffective in failing to argue that Defendant's third degree burglary convictions and his conviction for assault on a correctional officer were not predicate offenses under the ACCA.
Burglary, for application of the penalty provided in the ACCA, has been limited to "generic" burglary, defined as the "unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor, 495 U.S. at 599, 110 S.Ct. 2143. As noted above, the Supreme Court has ruled that burglary statutes covering vehicles and boats are excluded from the definition of generic
South Carolina's third degree burglary definition of "building" includes a vehicle, watercraft, or aircraft where "any person lodges or lives" or "where people assemble" or "where goods are stored." S.C.Code § 16-11-310(1), (2). These definitions necessarily take South Carolina's third degree burglary statute beyond "generic burglary" as defined in Taylor.
On August 13, 2013, the Fourth Circuit decided United States v. Carthorne, 726 F.3d 503 (4th Cir.2013). In Carthorne, the Fourth Circuit applied the Supreme Court's 2010 Johnson decision and found that Virginia's offense of assault and battery on a police officer was not a crime of violence under the residual clause.
Accordingly, as Taylor and its progeny and Fourth Circuit cases applying the Supreme Court's 2010 Johnson decision, including Carthorne, had been decided prior to Defendant's sentencing, the court finds "counsel's failure to object to the use of [these] conviction[s] as [] predicate violent felony conviction[s] was objectively unreasonable under prevailing professional standards." United States v. Tucker, 603 F.3d 260, 262 (4th Cir.2010).
If counsel had objected to Defendant's designation as an armed career criminal on the basis of Taylor, Shepard, James, the 2010 Johnson decision, Descamps, and Fourth Circuit case law applying the 2010 Johnson decision, the maximum statutory penalty would have been ten years' imprisonment. Therefore, counsel's failure to object prejudiced Defendant, and Defendant is entitled to relief.
For the reasons noted above, the Government's motion for summary judgment is
The government must generally raise procedural default to justify its interest in the finality of a criminal judgment. United States v. Metzger, 3 F.3d 756, 757-58 (4th Cir.1993) (reviewing issue not raised on direct appeal on merits after government failed to argue procedural default). When the government fails to raise procedural default, courts may raise procedural default sua sponte if the interests of "`judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice' militate against ... addressing on the merits the [potentially defaulted issue]." Id. at 758 (quoting Hines v. United States, 971 F.2d 506, 509 (10th Cir.1992)). See also United States v. Linder, 552 F.3d 391, 397 n. 2 (4th Cir.2009) (applying procedural default in spite of government failure to raise default because of "unique circumstances" of direct appeal in spite of appeal waiver). As noted above, the Government has not pursued the affirmative defense of procedural default. The court declines to dispose of this matter based upon Defendant's procedural default.
This definition is overbroad under James v. United States, 550 U.S. 192, 211 n. 7, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) ("Burglary under Florida law differs from `generic burglary' [because it] extends not just to entries of structures, but also of `conveyances.'... We [also] agree that the inclusion of curtilage takes Florida's underlying offense of burglary outside the definition of `generic burglary' set forth in Taylor...."), overruled on other grounds by Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).
